What are the risks of instigating mandatory vaccinations in your workplace, now that the tide is turning and we’re shifting towards fewer restrictions?
We’ve seen the pandemic evolve rapidly and circumstances have shifted dramatically at times, in short periods of time. Government rhetoric has now switched to informing people that we have to learn to live with Covid-19, indicating a much more balanced, sustainable approach into the spring.
Policy now appears to be a clear path to a restriction free country from March, and this includes a U-turn of policy on mandatory vaccinations in the care sector.
This article reviews the changes and what employers should be mindful of going forward.
Mandatory vaccinations in the care sector
Employees working in care homes were required to be vaccinated against Covid-19 from November 2021. This meant having received two doses of an approved vaccine before 11 November 2021. To continue to employ unvaccinated staff after that date would mean care home employers were at risk of breaking the law.
In early January 2022, vaccination as a condition of employment was extended to all patient facing NHS staff (including any organisation regulated by the Care Quality Commission) with effect from 1 April 2022. Patient facing included front-line workers, as well as non-clinical workers not directly involved in patient care but who may have face-to-face contact with patients, including ancillary staff such as porters, cleaners or receptionists.
The Government has since announced a U-turn of this policy, with the Secretary of State for Health and Social Care announcing that these provisions will be reversed.
It is understood that this reflects the changing picture, brought about by the so-called Omicron variant, but it was clear that there was mounting pressure on the government to reflect upon the direct and indirect consequences of such a policy.
Already critically stretched NHS services and resources had no flexibility for an imminent tranche of departures.
Vaccination outside of healthcare
Increasingly, there are private organisations who are shifting towards a difference in treatment between vaccinated and unvaccinated workers. Many firms have implemented a two tiered sick pay policy over the last few weeks and months. Supermarket chain Morrisons and retailers Ikea and Next are amongst the high profile employers to have introduced changes to pay. Other organisations are rewarding their vaccinated staff with greater access to benefits.
Where does it lead? And will this have the desired effect of keeping colleagues and customers safe? It is difficult to say, but it theoretically disincentivises unvaccinated workers to isolate and attend work if they won’t be paid. The primary reason the Government changed the law on Statutory Sick Pay from 13 March 2020 to ensure pay from day 1 of a period of sickness, rather than day 4 as it was previously, was to ensure sick workers didn’t go to work. The tide has changed.
And why was the care sector singled out? Teachers, supermarket staff, police officers and prison staff have all continued to work throughout the pandemic. They operate in environments with close contact to the general public, vulnerable individuals or children through necessity, and the Office of National Statistics puts those occupations amongst the most at risk of spreading and contracting the virus at work. Police Officers are even more so than care home and domiciliary care workers.
Having your employer make decisions based upon your personal, medical choices might be an unpalatable prospect for some. Indeed prior to 2019, it was inconceivable as a proposition and you would be hard pressed to find much support. But these are different times. The reaction to Covid-19 in unlike anything that has gone before it in recent history.
Dismissal and discrimination regarding mandatory vaccinations
There have been no widely reported legal challenges to any dismissal, or discriminatory conduct, which have succeeded in the context of mandating vaccination. Tribunals have broadly considered it to be a justified and proportionate approach to date.
What is unclear is when the balance will shift. As the virus continues to mutate to become less and less severe, it is only a matter of time before it will no longer be proportionate to infringe upon other liberties and livelihoods.
When the trend leans towards being less reactive to the virus, both in government policy and in public attitude, it could be that employers who dismiss in 2022 are more likely to be at risk of an adverse unfair dismissal claim than in 2021.
Cases of indirect discrimination are often determined by undertaking a balancing act of what amounts to a reasonable and proportionate limitation of an individual’s protected characteristics. It seems likely we will see that shift more in favour of the preservation of those rights, as the justification for infringing it becomes weaker and weaker.
What comes next?
Throughout the pandemic, most businesses have followed government guidance and recommendation. This isn’t likely to change now and as England returns to Plan A, there is reputational risk associated with taking a firmer stance.
Whether public and private employers in other sectors, beyond health and social care, will introduce mandatory vaccines appears both less likely and more risky than it did in January 2022. Internal policy and messaging to staff will need to be closely evaluated as the picture changes.
If businesses do decide to mandate vaccines, they would be wise to consider every objection on a case by case basis. The risk is not only with imposing blanket policies which may be discriminatory, but also with losing the argument by relying on reasonable management instructions. That argument is beginning to sway more favourably towards the right to make own one’s own medical choices.
Aside from policy decisions around vaccines, the economic predictions are optimistic for the UK in 2022. With severe worker shortages across most sectors, business may be less inclined to dispense with valuable workers.
We advise that employers proceed with caution.
If you would like to discuss your employment policies or mandatory vaccinations, please get in touch with our team below. For more article on Covid-19, click here.